Andrea Terrell PhD William Clarke PhD Michael Evans PhD and Jennifer Collins PhD

Contents

1. Introduction

2. What is an Expert Witness?

3. How to Prepare as an Expert Witness

4. Defenses of Positive Results

5. Conclusions

Summary

Often in judicial trials, employment arbitration or administrative hearings positive drug tests are a factor in the proceedings. In these cases, it is important to consider the validity, or lack of validity, of the drug testing results. An expert witness in these instances is a laboratory professional who has the expertise to render an opinion regarding the validity of test results based on the information provided to them as well as information from the scientific literature. Depending on the situation, the expert's background will be in forensic or workplace drug testing. It is important for the expert witness to be familiar with testing procedures and potential interferences, the various settings where their testimony may occur, possible alternative explanations for positive results and how their testimony may be used. This chapter will discuss venues for expert testimony, provide a description of what an expert witness is, discuss preparation for proceedings where expert testimony is needed and review potential alternative explanations for positive drug test results.

Key Words: Drugs of abuse; expert witness; MRO; judicial trials; validity.

1. INTRODUCTION

As an expert witness, one may encounter a variety of courtroom situations depending on the type of trial and the type of case. These will be discussed in this chapter along with what is expected from an expert witness in a trial or administrative hearing.

From: Handbook of Drug Monitoring Methods Edited by: A. Dasgupta © Humana Press Inc., Totowa, NJ

1.1. Forensic Testing

1.1.1. Types of Trials

There are three basic types of trials: jury trials, bench trials and administrative hearings. In a jury trial, the attorneys present their case before a panel of individuals in the presence of a judge. When making their cases, attorneys often attempt to appeal to the emotions of the jury members, and as a result trials can tend to get dramatic. Bench trials do not involve a jury. Rather, the judge is the jury, eliminating the need for a layperson audience. Bench trials are more straightforward than jury trials, as judges do not allow for dramatization on the part of the attorneys. Administrative hearings are more informal and are often utilized in family services and employment termination proceedings.

1.1.2. Types of Cases

There are two types of court cases: criminal cases and civil cases. In a criminal case, the government (prosecution) is attempting to convict an individual (defendant) for committing wrongful and illegal acts against another party. If the defendant is found guilty, the judge's sentence may include probation, community service, psychiatric/medical treatment and/or prison time. In order to be convicted, guilt must be proven beyond a reasonable doubt. Reasonable doubt refers to the level of certainty that the judge or jury needs to have before finding an individual guilty (1). This doubt may have arisen from the evidence or lack of evidence. If, after carefully considering all of the evidence or lack of it, a reasonable person still has doubt about the defendant's guilt, then that individual cannot be considered guilty.

Civil cases are reserved for situations in which two parties (a plaintiff and defendant) are tangled in a dispute and rely on the courts to resolve the issue. The burden of proof is lower. Neither party face the risk of jail time, and the outcome is typically financial.

1.2. Workplace Drug Testing

Providing expert testimony in workplace drug testing cases bears many similarities to that described for forensic and criminal cases; however, there are some important differences. While workplace cases can be tried in civil proceedings, they are more often than not adjudicated in a less formal setting. The two most common formats are arbitration and administrative hearings.

1.2.1. Arbitration

Arbitration or "alternative dispute resolution" is defined as the submission of a dispute to one or more impartial persons as an alternative to the judicial system (judge or jury). The arbiter is presented with evidence at a formal hearing and a decision is rendered based on the evidence presented. The resulting decision is usually final and binding (1). Arbitration may be used to resolve many types of employment disputes including wrongful termination and sexual harassment and discrimination. In the context of workplace drug testing programs, they are most often encountered as a part of grievance procedures defined in collective bargaining agreements. There are defined federal rules for conducting arbitration proceedings, and some states have specific statutes in that regard (2).

While less formal than courtroom proceedings, arbitrations are conducted in accordance with defined protocols. The arbitrator is agreed upon by the parties. The participants may be represented by attorneys or designated representatives and witnesses relevant to the dispute may appear. Like trials, whether or not the witnesses are present during the entire proceeding or are sequestered varies and may not be determined until just prior to initiation of the hearing. Generally, the format follows standard courtroom protocol in that each side presents evidence and testimony from relevant witnesses who are subject to direct questioning and cross-examination. Witnesses testify under oath, and the proceedings are recorded. Rules for discovery and presentation of evidence are not as rigid as litigation, and the arbitrator may allow presentation of any information deemed relevant to the issues under dispute. Arbitration decisions are rendered by the arbitrator at a later date.

As an expert witness in an arbitration proceeding, one must be "qualified" as having specialized knowledge by experience, education and/or skill that is necessary to the understanding of the issues in the case. Most often, the curriculum vitae (CV) serves as documentation of experience and qualifications of the expert and will be offered as evidence. As in court proceedings, it is extremely important that the CV is up-to-date and information presented is accurate, because if accepted as an expert this document will be entered into the permanent record and may be discoverable in future cases.

1.2.2. Administrative Hearings

Administrative hearings are also common in workplace drug testing cases, in the context of both wrongful termination and unemployment compensation proceedings. Like arbitrations, administrative hearings tend to be less formal proceedings, and the format and content varies depending on the employer and the locale. It is not uncommon, particularly in unemployment compensation hearings, for the witnesses to appear by telephone rather than in person. This is generally determined by rules of the jurisdiction, the discretion of the hearing officer and the willingness of both parties to accept testimony over the telephone.

Administrative hearings are generally structured in a manner similar to arbitration, witnesses testify under oath, relevant evidence is presented and the hearing officer renders a decision at a later date. In unemployment compensation hearings, it is relatively unusual for the individual to have legal representation, and questions may be posed to the expert witness by the individual challenging the denial of compensation.

2. WHAT IS AN EXPERT WITNESS?

2.1. Participants in the Judicial System (Forensic Testing)

In the case of a trial, there are two stories: one told by the prosecution and another as interpreted by the defense. Attorneys from both sides present their respective stories in a persuasive manner. This is done by enlisting witnesses to bring the details of each story to life. At the end of the trial, it is often up to the jury but sometimes a judge to determine the outcome of a case.

2.1.1. Attorneys

In a typical court case, there are two types of attorneys: prosecution and defense (in civil cases there will be a plaintiff's attorney instead of a prosecutor). Prosecutors are elected or appointed on behalf of the state to convict an individual or organization (known in court as the defendant), and defense attorneys serve as advocates for the defendant. In criminal cases, the prosecution is charged with meeting the burden of proof, that is, proving beyond a reasonable doubt that the defendant is guilty of committing the crime in question. They must provide evidence confirming the defendant's motive, means and/or opportunity to carry out the crime.

By comparison, a defense attorney's goal is to prove that reasonable doubt exists. The defense attempts to create reasonable doubt by raising doubts through the prosecution's argument, discrediting evidence and testimony and highlighting inconsistencies that indicate the innocence of the defendant or even the guilt of another person.

In the United States, the US constitution guarantees that every citizen has the right to a fair trial. This includes being judged by a jury of one's peers. In a criminal trial, it is the jury that weighs the evidence, testimony and general arguments in order to reach a decision about the defendant's guilt or innocence. The members of a jury are unbiased; therefore, attorneys from both sides spend a great deal of time interviewing potential candidates, weeding out those with prior knowledge or preconceived opinions about any aspect of the case.

It is the job of an expert witness to educate the jury about the science involved in a case and provide an educated opinion as to what the science implies. The expert witness must also ensure that neither party twists or misconstrues scientific data for their own gain. Attorneys are advocates for their own agenda; thus, the expert witness is the only advocate of science. The expert witness should keep in mind that jury members come from a variety of social, economic and educational backgrounds and most of them will possess little more than a basic understanding of grade school science. Therefore, testimony should be presented in a manner that can be understood and used by the general public.

2.1.3. Witnesses

In every case, both the prosecution and defense will enlist a variety of witnesses to support their arguments; the order of the witnesses depends on how their testimony relates to the logistics of the case. There are two different types of witness: fact witness and expert witness. Fact witnesses are called to testify to actions they personally performed or observed and are often the first witnesses to be called to the stand, as their testimony lays the foundation for an attorney's case. Laboratory technicians or bench-level chemists are often called into court as fact witnesses to testify on how they personally handled a specimen, especially if the chain of custody for a specimen is called into question.

Fact witnesses should not offer opinions based on the results of laboratory analysis. When the data require more explanation or interpretation than a fact witness is qualified to provide, an expert witness is necessary. Expert witnesses are called to provide opinions based on their scientific training, knowledge and experience and are essential in helping interpret complex technical information.

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